Counter-Terrorism and Sentencing Bill
Tuesday 26th January 2021
(3 years, 10 months ago)
Lords ChamberCounter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-I Marshalled list for Committee - (21 Jan 2021)
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, in opening this debate, on the first day of Committee on this Bill, it might be sensible for me to outline our approach. This is particularly so, because I was not able to be present for the Second Reading debate on 21 September—for which I apologise but I was involved in a court hearing.
All on these Benches—and, I believe, all across the House—regard terrorist offences as particularly serious and deserving of the highest condemnation. This Bill was a response to two appalling terrorist attacks. The first was the attack in and outside Fishmongers’ Hall in November 2019, when Usman Khan, who had been released on licence after serving half of a 16-year sentence for terrorist offences the previous December, stabbed five people, killing two of them, after attending a prisoner rehabilitation programme, before being shot dead by police. The second was the attack on Streatham High Road in February last year, when Sudesh Amman, a terrorist who was under surveillance and had been released a month or so previously from a three year and four month prison sentence for disseminating terrorist material, stabbed and injured two people before being shot dead by police. As the noble Lord, Lord Parkinson of Whitley Bay, rightly pointed out at Second Reading, both of those attacks were carried out by offenders who had been released half way through their sentences. The central feature of Part 1 of this responsive Bill is to make the sentencing regime tougher, both for offences that are considered by their nature to be terrorist offences and for offences deemed to have a terrorist connection.
Our concern, in considering this Bill at Committee stage, is to ensure that damage is not done, by the perceived requirement to respond severely to terrorist offences, to consistent and long-held principles of our criminal law. Clause 1, broadly, extends the range of offences that can be deemed to have a terrorist connection to include any offence, committed after the Act comes into force, that is punishable with imprisonment for more than two years. The terrorist connection need not be determined by the judge in the case of a number of specific terrorist offences listed in Schedule A1, effectively because it is presumed. Otherwise, it is for the judge to determine and state in open court that an offence has such a connection. A finding that an offence does have a terrorist connection, requires a sentencing judge to treat that terrorist connection as an aggravating factor when imposing sentence by reason of Section 69 of the Sentencing Code. For the purpose of that section, an offence has a terrorist connection if the offence
“is, or takes place in the course of, an act of terrorism; or … is committed for the purposes of terrorism.”
I note in passing that the code does not require that the offender was a knowing party to the planning, objectives or implementation of the act of terrorism, actual or intended, that was in fact committed. Furthermore—and this is our central point on Clause 1 —the decision that the offence has a terrorist connection is to be taken by the court at the sentencing stage, even though such a decision inevitably fundamentally changes the nature of the offence for which the offender has been convicted. The decision that is then made involves a factual determination of great significance to the criminality of the defendant and of the offence, yet it is taken by the judge alone without the involvement of a jury. Because the category of offences that may give rise to such a finding is so wide—that is, any offence that carries a maximum prison sentence of more than two years—the offences include a very wide range, such as causing criminal damage over £5,000, assault occasioning actual bodily harm, theft and many others, some of which would often be quite minor if committed without a terrorist connection.
Terrorism as an aggravating factor in sentencing was introduced by the Counter-Terrorism Act 2008. By Section 30 of that Act, where a person was found guilty of an offence listed in Schedule 2 to that Act and the court found that the offence had a terrorist connection, the judge was bound to treat the terrorist connection as an aggravating factor. The mechanism was the same as is proposed under this legislation, but the Schedule 2 offences under the 2008 Act were of the utmost severity. They included murder, kidnapping, Section 18 wounding with intent to cause grievous bodily harm, a number of serious explosives offences, hijacking, biological weapons offences, hostage taking and serious aviation offences.
A determination that an offence has terrorist connections has implications beyond sentencing, as it also triggers a number of forfeiture provisions and the terrorism notification requirements that apply. Under the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation we passed last year to prevent terrorist offenders being released after serving half their sentences—any offender whose offence came under the prescribed list of serious offences, and had been determined by a judge to have a terrorist connection, was subject to the rules in that legislation against release at the halfway point but, again, that Act involved a list of serious prescribed offences.
Lord Naseby (Con) [V]
My Lords, I have a very different view from the opponent of the clause standing part. The UK Government, regardless of who is in power, obviously recognise at this point in time that the fundamental dimensions of this Bill are about the safety of the United Kingdom against terrorism. Our problem is that we are still a very open nation.
Whether it is in Afghanistan, the Middle East or Asia, in all those parts of the world we take an active role in promoting democracy. We see it occasionally with refugees who come to this country. Genuine refugees are welcome, but hidden within the alleged genuine refugees are, too often, terrorists or quasi-terrorists. It is against that background that my noble friend on the Front Bench is rightly introducing this Bill in Committee. If people think I am exaggerating, I have had personal death threats from the IRA. I happened to represent Northampton South, which had an IRA cell in the early 70s. Colleagues may know that I have been deeply involved in Sri Lanka for 50 years, and I am sorry to report that some number of illegal entrants to our country were active members of the LTTE Tamil Tigers. So the challenge is there, and we need to recognise it.
I praise those in our party who have decided the time has come to look again at the sentencing of terrorism. The problem is made worse by the misunderstanding—whether it be genuine or otherwise—of the difference between human rights and the original European Convention on Human Rights, which, of course, was the basis of our Human Rights Act. That is fine, but it should not cover elements where a war took place. Again, I cite Sri Lanka, because that was a ghastly war between a democratically elected Government and a terrorist movement, proscribed by the United Kingdom Government in in its last few months in 2001. The law that looks after the rights in that context is international humanitarian law.
It may surprise colleagues to know that under the generosity of previous Governments, we in the UK allowed the number two man running the Tamil Tigers to have an office in Camden. Okay, he was a British citizen, but he was in charge throughout the period when I was involved, and his wife—an Australian lady, now, obviously, with joint British citizenship—was involved in recruiting child soldiers. We had these people living in our midst. I say to my noble friend on the Front Bench: well done in bringing the Bill forward. Clause 1, to me, is absolutely fundamental to it, and I wish it a safe and swift passage.
Lord Thomas of Gresford (LD) [V]
My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.
Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.
The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.
Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.
Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?
Lord Falconer of Thoroton (Lab) [V]
I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.
This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.
Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.
I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.
Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.
Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.
This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.
It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.
I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.
It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:
“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]
The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.
I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.
Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.
The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group consisting of Amendment 1. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Schedule 2: Serious Terrorism Offences: England and Wales
Amendment 1
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code (serious terrorism offences). References to those offences will instead be inserted on their commencement by Schedule 22 to the Sentencing Act 2020 (see the amendment at page 108, line 11) so that they are dealt with consistently by the Sentencing Act 2020.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I hope that the Committee will allow me to take a moment to thank the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton, for their very warm words of welcome, which I appreciate.
Amendment 1 is a minor technical amendment that removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code, which deals with serious terrorism offences. References to those offences will instead be inserted, on their commencement, by Schedule 22 to the Sentencing Act 2020 so that they are dealt with consistently by that Act. I beg to move.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I understand from the Minister that this is a minor amendment. I too welcome him to his position. He has been very helpful to me both on this Bill and on the Domestic Abuse Bill, with which we are dealing almost simultaneously. I have a couple of minor questions for him. First, what would happen if this amendment were not put in place? How would that have affected the position, and what could the consequences have been? Secondly, what level of consultation has he done externally to ensure consistency in Sentencing Codes and parliamentary Acts?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the words of the noble Lord. To answer his two questions, I say that this is essentially a tidying-up matter because of the different pace of legislation going through Parliament at the moment. The question of what would happen if this amendment were not made is an interesting one. At the very least we would be left with inelegant legislation, and I know from my previous incarnation that inelegant legislation is bad for Parliament but very good for lawyers, so let us try to make it as elegant as we can while we are at it. Much of the consultation on this matter preceded my involvement in this Bill and indeed my introduction to this House, but I am aware that there has been very significant consultation. Of course, if the noble Lord wishes to raise any particular points with me, my door is always open to him.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
Schedule 3: Offences for the purposes of this Act: Northern Ireland
Amendment 2
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment and the amendments at page 53, line 44, page 95, line 4 and page 95, line 37 are consequential on the removal of Clause 34.
Lord Wolfson of Tredegar (Con)
My Lords, I will also speak to Amendments 3, 17, 18, 21, 22, 23, 24, 25, 26, 73, 74 and 75. I will also signal my intention to propose the removal of Clauses 33, 34 and 35.
Clause 33 was intended to provide explicit provision so that Scottish Ministers might impose a polygraph condition as a licence condition for specified released terrorist offenders. Clause 34 was intended to provide explicit provision so that the Northern Ireland Department of Justice might impose a polygraph condition as a licence condition for specified released terrorist offenders. Scotland does not currently have express provision for polygraph testing, but Scottish Ministers have broad powers to set licence conditions under Section 12(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Northern Ireland does not currently have express provision for polygraph testing, but the Department of Justice has broad powers to set licence conditions under Article 24 of the Criminal Justice (Northern Ireland) Order 2008 and Rule 3(2)(e) of the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009.
Through discussions on the legislative consent of the Scottish Parliament and the Northern Ireland Assembly on the provisions of the Bill, it became apparent that while this clause would enable a fully comparable UK-wide approach to polygraph testing on licence, pursuit of this provision in Scotland and Northern Ireland was not strictly necessary and could result in Scottish and Northern Irish Ministers withholding their consent for the Bill. The Government remain of the view that polygraph examinations are a useful additional tool in supporting the effective management of terrorist offenders, and we hope that the Scottish Parliament and the Northern Ireland Assembly will see the demonstrable benefits of its introduction in England and Wales.
This Government will continue to legislate on reserved matters but, as an expression of our respect for the existing powers of the Scottish Government and the Northern Ireland Assembly in relation to the setting of licence conditions, and as a demonstration of this Government’s reasonable approach to those discussions, we have now agreed to remove the provision on the clear understanding that, should this Scottish Parliament or Northern Ireland Assembly or a future one change its view on polygraph testing, it will be able to implement the measure without additional legislation being required.
Clause 35 was intended primarily to provide supplementary provisions to Clauses 33 and 34 that would restrict the circumstances in which the devolved Administrations could impose mandatory polygraph examinations as a licence condition for certain terrorist offenders. As a result of the removal of Clauses 33 and 34 from the Bill, Clause 35 is no longer needed. The clause was intended to ensure that regulations could be made to ensure that polygraph conditions were confined only to those offenders’ licences where it was necessary and proportionate to do so, to ensure standards for the examinations and that appropriate records and reports kept in relation to testing were consistent across the UK. Polygraph examinations are already carried out on sexual offenders in England and Wales. The conduct of those polygraph examinations is governed by rules made under Section 29(6) of the Offender Management Act 2007. Amendments 2, 3, 17, 18, 21 to 26 and 75 are consequential on the removal of Clauses 33 to 35.
Amendment 73 is necessary to ensure that the measures that permit introduction of polygraph testing in a licence condition for terrorist offenders in England and Wales are commenced two months after the Bill receives Royal Assent. Previously, when explicit provision was sought and set out for Scotland and Northern Ireland as well as for England and Wales, we had agreed that the provision should be commenced via regulation to allow sufficient time to develop the relevant infrastructure in those jurisdictions. As explicit provision is no longer made for those jurisdictions through this Bill, and polygraph testing is already used by the probation service for sex offenders in England and Wales, the same delay is not now required. As such, the usual commencement of two months after Royal Assent is appropriate. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.
What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.
The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.
Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?
It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?
Lord Falconer of Thoroton (Lab) [V]
Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.
In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?
Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?
Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.
On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.
On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.
I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.
I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.
Lord Wolfson of Tredegar
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group beginning with Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 4: Serious terrorism sentence for adults aged under 21: England and Wales
Amendment 4
Member’s explanatory statement
This amendment probes the balance between custody and licence for young offenders.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.
The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.
I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.
There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.
The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.
I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”
I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.
This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?
It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the noble Lord, Lord Thomas of Gresford, concluded his remarks by saying that the amendment was “testing the rationale” of these sentences, and that is indeed clearly the case. The first amendment reduces the minimum term in custody and the second increases the period on licence. Both the noble Lords, Lord Thomas and Lord Marks, referred to these as “no-hope sentences”. I understand the sentiment they expressed on these extremely long and very serious sentences being given to children—but they are not really no-hope sentences, are they? YOT and, more likely, probation and the Prison Service will have been working with these people for many years to give them hope that, when they get out of prison and are on licence and, eventually, off licence, they can go on to lead a constructive life.
Now this is a very tall hurdle. I understand that; we are dealing with the most serious sentences that one can imagine. Nevertheless, that is the role of probation and it is very important, I would say, for the young person to see that there is hope at the end of the period, because it is far more likely that, if they see that hope, they will engage constructively with people in prison and carry on that constructive intervention when they leave on licence. So I have some questions for the Minister. What assessment has been done of the likelihood of reform of offenders—is there any data on that? Also, what is the number of young offenders now in custody who are likely to be in custody as a result of this legislation? Are there any examples of where longer custodial sentences have helped young people to go on to lead lives in which they no longer offend?
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, it is a privilege to stand and answer points made by the noble Lords who have spoken. I first acknowledge their great experience and wisdom in the field, and the evident compassion that underpinned their observations to the Committee. I know that at least two of them have had the experience that I have of acting for a very young person charged with a crime of the greatest magnitude and severity. I can tell from the way in which their questions were framed that they are aware of the extreme sadness at the loss of potential that the advocate finds when acting for a person in such a position. I hope that noble Lords appreciate that I am fully aware, from the perspective of legislation, of the awkwardness and difficulties attendant upon arriving at an appropriate sentence for these most serious of crimes.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
The noble and learned Lord very briefly answered the questions on consultation from my noble friend Lord Thomas. I hope he has in his brief the answer to the headline question of whether consultation was undertaken with probation and what its views were on the balance between custody and licence.
Lord Stewart of Dirleton (Con)
Will the noble Baroness confirm that she is referring to the probation service?
Baroness Hamwee (LD) [V]
I appreciate that there are levels and areas of probation. The question extends to all parts of those who provide probation services, but the central probation service, offender management, is probably more relevant to this than local probation services.
Lord Stewart of Dirleton (Con)
If I may, I will respond to the noble Baroness’s question in writing.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.
My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.
The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.
The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment would give the courts more discretion when applying the minimum term.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.
Lord Thomas of Gresford (LD) [V]
[Inaudible]—is in relation to the necessity for the judge at trial to have full discretion in passing sentence. I do not wish to repeat that, but I will add a particular comment. When a judge is faced with a provision such as this, he has to define those circumstances which influence him. He has to set out in his sentencing remarks precisely what factors influence him. Things have moved very considerably over the decades away from the swift disposal of a defendant by a judge with very little comment. What he says is important not just for the defendant to understand why he is being sentenced in that way but of course, if there should be any appeal on sentence, for the Court of Appeal to understand precisely what it was at the time that the judge had in mind. “Exceptional” circumstances is too great an imposition on the judge’s discretion and I believe that my noble friend’s proposal that it should be “significant” is right.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.
My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.
The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.
By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.
A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.
By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.
As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.
For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.
The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group consisting of Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.
Clause 16: Increase in extension period for serious terrorism offenders aged under 18: England and Wales
Amendment 7
Lord Falconer of Thoroton
“( ) Section 255 of the Sentencing Code (extended sentence of detention: availability) is amended as follows.( ) After subsection (2) insert—“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—(a) take account of the offender’s age;(b) consider whether options other than an extension period of eight to ten years might be more effective at—(i) reducing the risk of serious harm to members of the public, or (ii) rehabilitating the offender.(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”( ) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.( ) The report of the first review must be laid before Parliament within one year of this Act being passed.”
Lord Falconer of Thoroton (Lab) [V]
Through this amendment, before the court considered whether to apply an extended sentenced of eight to 10 years to somebody aged under 18 at the time of conviction it would have to consider a pre-sentence report. That report should specifically address the age of the defendant and whether there are alternatives to the extended sentence of eight to 10 years. If the pre-sentence report considers that there are alternatives, the court is then obliged to consider that. It can reject it, but it has at least to consider it.
The amendment reflects our belief that for young adults, or people who might not even be adults, there may be, on the particular facts of a particular case, other ways better to protect a community than an extended detention period of eight to 10 years. The amendment would not require a court to accept that, but it would ensure that there is proper focus on whether there are better ways of protecting the community. I beg to move.
Lord Woolf (CB) [V]
My Lords, I adopt what the noble and learned Lord, Lord Falconer, said and will add a few words. Although it was not accepted, I suggest that, from a practical point of view, the other provisions of the Bill would fall within what the Secretary of State might want to consider in reviewing the effectiveness of the section once a year has passed. That makes such a review highly desirable.
It is always possible for something to be thought of as exceptional, which, in fact, cannot be shown to fall within that limitation. It is a very healthy safeguard if the matter has to come before the Secretary of State as indicated in the proposed amendment, because that will give an opportunity to reconsider based on the experience of actually seeing the provisions of the Bill being implemented in the Act of Parliament, which in due course will be passed.
Lord Robathan (Con)
My Lords, I congratulate my noble friend Lord Wolfson of Tredegar on what I think is his first outing with the Bill. I know where Tredegar is, but I am not sure I have ever been there. I do know, rather too well, the Brecon Beacons, just to the north, which are very beautiful but also extremely wet and cold, as I recall.
I enter this debate with some trepidation because we have a lot of clever lawyers taking part. On this occasion, I do not mean that in any derogatory sense; this is legislation, and we need it to be examined by clever lawyers who are lawmakers, but I speak only as a layman. We know what the issues are, and in this, as in so much, there is a need for balance. I heard what the noble and learned Lord, Lord Falconer of Thoroton, said, but we need to not be starry-eyed when thinking that a young person might not be perfectly capable of being radicalised early and remaining radicalised. We need to look at how the judiciary and the legal process can keep tabs on people who have been radicalised. That is why, in this particular case, I am certainly on the side of community safety rather than the rights of offenders.
Religious fanaticism is not, of course, confined to Islam. People inspired by ideology do not always respond well, whatever their ages. In December, Jonathan Hall said that deradicalisation using monitoring and theological programmes does not work. Therefore, we need, in exceptional cases—and there will be very few —to give courts the right, and indeed the duty, to ensure that society is protected, over and above the rights of some very unfortunate young people—young men, almost exclusively—who have transgressed in these terrorist actions.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I call the next speaker, the noble and learned Lord, Lord Morris of Aberavon. I think we are having some problems with him, so I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have a slightly embarrassing confession to make. When I first decided to get involved with this Bill, I thought it was a completely different Bill. Having realised what is was about, I then realised that it is one of those bits of legislation that is a bit rushed. It reminds me of the Dangerous Dogs Act 1991, which was rushed through Parliament because of public concern about, I think, 11 very dangerous and nasty incidents of people being savaged by dogs. It proved to be, first, a not very effective piece of legislation, and then, a not very popular one. I also had not realised there would be so many eminent lawyers involved in this debate, and I feel slightly uneasy, because I am coming into this as a member of society who has a very practical reaction to this sort of legislation. I do not believe that locking people up and throwing away the key is the best way of treating them, for all sorts of reasons. I do not mean for them, necessarily, but for society and the whole prison system.
This amendment goes to the heart of what we are trying to achieve when we sentence terrorist offenders. Are we locking up monsters and not letting them out again in the hope that prison is going to crush or contain them, or whatever? Or are we locking people away to protect society for as long as it takes to teach them the error of their ways and, perhaps, confront them with the consequences of their actions and return them to society as re-engaged citizens?
Statistics suggest that only a tiny percentage of people who have been locked up for terrorist offences come out and reoffend. We need to look at that and be practical about what we are trying to achieve. It is easy for the Government to appear to be tough on crime, throw red meat to the tabloids and satisfy the people who think that anything less than the death penalty for almost every crime is being soft on crime. I think there might be people on the Government Benches who think like that. But it is much harder for the Government to do the tough work of reintegration into society, which is a much more effective use not only of money but of resources. Locking people up in an extremely expensive prison service just teaches people to be better at crime while they are there.
As we have seen in the United States, extremist ideologies have spread among our own western societies. The so-called QAnon conspiracies, fuelled by Donald Trump, and promulgated across the internet, TV, and among the Republican Party, led people to hope for mass arrests and the execution of their political opponents. This is a domestic terrorism movement, which is growing and exists here in Britain. We are going to be encountering a completely different sort of terrorist: a white terrorist, just for starters. The Government have to step up. The problem is growing, and the solution is not just to lock more people up but to learn how to deal with this at source and also once people have offended. The Government need to rethink this a little bit, and be a bit more practical, and less reactive to perhaps transitory public opinion.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Lord, Lord Marks of Henley-on-Thames.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.
The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.
Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.
The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.
The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.
The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.
The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.
For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.
However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.
In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister from the noble Lord, Lord Paddick, so I call him.
Lord Paddick (LD) [V]
My Lords, I am very grateful to the Minister for his comments. Yesterday, in debating the Domestic Abuse Bill, the Government declined to include child offenders in the definition of “domestic abuse” because, as the Minister said, the Government did not want to criminalise children. In this Bill, however, they seem to be taking a hard line when it comes to child offenders. What is the difference in approach? Is it because the Government think that domestic abuse is not a serious offence where the public need to be protected but terrorism is?
Lord Wolfson of Tredegar (Con)
My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.
I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.
I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.
I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 8. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this amendment or anything else in this group to a Division must make that clear in debate.
Clause 23: Terrorism sentence with fixed licence period: Scotland
Amendment 8
Lord Stewart of Dirleton
Member’s explanatory statement
This amendment clarifies that new section 205ZC of the Criminal Procedure (Scotland) Act 1995 does not apply where an offender aged under 18 is sentenced to detention without limit of time for a terrorism offence.
Lord Stewart of Dirleton (Con)
My Lords, I shall speak also to Amendment 9 in this group. Both are minor technical amendments to Clause 23. Amendment 8 would make a minor amendment to Clause 23, which introduces the terrorism sentence with fixed licence period in Scotland. The amendment would add the sentence of detention without time limit to the “waterfall” list of sentences of imprisonment and detention that a court can impose in relation to an offence. This would ensure that the new terrorism sentence was available only where a court did not impose a sentence in this list, which includes the indeterminate sentence of detention under Section 208, making the order of sentencing options clear.
Amendment 9 would simply remove a now redundant reference to new Section 205ZC(6) in subsection (4) relating to the new terrorism sentence introduced in Clause 23 due to an amendment to that provision on Report in the Commons. Subsection (4) defines the meaning of the aggregate term in relation to a sentence of detention in respect of the new terrorism sentence in Scotland, as it applies to offenders of at least 16 years of age but under 21. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.
Lord Falconer of Thoroton (Lab) [V]
I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?
Lord Stewart of Dirleton (Con)
My Lords, the purpose of the amendment was to reflect the approach adopted across England and Wales, and Northern Ireland. The “waterfall” approach means that courts can impose the new sentence only where they do not impose, for example, a life sentence or an extended sentence. Within the Scottish sentencing framework, this waterfall includes the sentence of detention without time limit, which was unintentionally omitted during initial drafting of the clause. As I said earlier, subsection (6) in the previous version of the Bill was amended during the Commons debate. The amendment would simply remove a reference to a provision that no longer exists.
Just as the noble Lord, Lord Thomas of Gresford, is aware of attractive waterfalls in Scotland, I am aware of attractive waterfalls in Wales. I hope that some day soon we will be permitted to discuss them in a friendly fashion together.
Lord Stewart of Dirleton
Member’s explanatory statement
This is a consequential amendment required as a result of the amendments already made to the Bill to limit the availability of the new terrorism sentence introduced by Clause 23 to cases of conviction on indictment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 10. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 10
Lord Hunt of Kings Heath
“Rehabilitation and de-radicalisation programme
Within six months of this Act coming into force, the Secretary of State must—(a) publish a strategy setting out how a programme of rehabilitation and de-radicalisation is to be applied to those sentenced under Part 1 of this Act; and(b) lay a copy of the programme before Parliament.”
Lord Hunt of Kings Heath (Lab) [V]
My Lords, first, I declare an interest, as my wife is an adviser on the Prevent programme in the further education sector. The importance of this amendment was driven home yesterday by comments from Jonathan Hall, the Independent Reviewer of Terrorism Legislation, when he said that terrorist prisoners are not being prosecuted for radicalising fellow inmates and that extremism is being encouraged behind closed doors in our prisons. Although I broadly support the major provisions of the Bill that are intended to ensure that serious and dangerous terrorist offenders spend longer in custody, they surely have to go hand in hand with a rigorous programme of rehabilitation and deradicalisation.
The Government’s claim that longer sentences will allow more time in which to support disengagement and rehabilitation is, frankly, fanciful in the light of experience over the last few years. Even the impact assessment published alongside the Bill acknowledged that there is limited evidence of the impact of longer prison terms on reoffending and that there is a risk of offenders radicalising others during their stay in custody. So far, the Government have been less than convincing on how they are to tackle the evident problems in our prisons with terrorist offenders, so my amendment seeks to ensure that Ministers have to publish a strategy setting out how a programme of rehabilitation and deradicalisation is to be applied to those sentenced under Part 1 of the Bill.
The importance of gripping this was certainly underlined by Jonathan Hall yesterday, when he announced that he has decided to review terrorism in the prison estate in England and Wales. As he said, how terrorism is detected, policed, disrupted and prosecuted when it occurs within the prison estate is relevant to the overall effectiveness of terrorism legislation. Mr Hall said that he is particularly focused on acts within the prison estate that amount to criminal offences, such as encouraging terrorism or disseminating terrorist publications, the status and influence of convicted terrorist prisoners within the prison estate, and whether there is any connection to prison gangs. His review is of course highly relevant to my amendment, and particularly to its timing, but it does not detract in any way from the need for a concerted government strategy.
It is not as though Ministers did not know that they had real problems here. In 2016, the review by former prison governor Ian Acheson warned of a growing problem within prisons. Anti-terrorism legislation passed in the aftermath of 7/7 had led to a significant increase in conviction rates for terrorist offences. He identified that, progressively, more of those offenders were held outside the high security estate and that some were proceeding through the offender management system towards release into the community. Such prisoners extended the threat of radicalisation beyond those arrested for terrorist offences. Other prisoners, both Muslim and non-Muslim, serving sentences for crimes unrelated to terrorism were then vulnerable to radicalisation by Islamist extremists. Acheson argued, four years ago, that
“a central, comprehensive and coordinated strategy is required to monitor and counter it”
and
“focus on greater coordination with the police.”
The Government responded in time by creating a new Security, Order and Counter Terrorism directorate. Specialist units were promised to allow greater separation and specialised management of the highest-risk individuals, with improved capacity for responding swiftly to serious violent incidents. Improved staff training, tightened vetting and removal of extremist literature were also promised, alongside greater focus on the safe management of corporate worship. For all those fine words, little progress has been made. Indeed, last week it emerged that only a handful of nearly 200 people in prison for terror-related offences were in the separation places recommended by Mr Acheson.
Lord Carlile of Berriew (CB) [V]
My Lords, I give my strong support to both amendments in the group: that moved by the noble Lord, Lord Hunt of King’s Heath, and the one that will be spoken to later by my noble friend Lord Ponsonby of Shulbrede.
I want to start by thanking the joint strike force on the Government Front Bench—the noble Lord, Lord Wolfson, and the noble and learned Lord, Lord Stewart—who have brought a refreshingly clear and responsive attitude towards debates on quite complicated legal issues. I can say of both of them that their engagement with Members has been exemplary; the noble Lord, Lord Wolfson, has specialised in short, 20-minute conversations that cover everything in a relatively short time. I just hope that the noble Lords will not get over the open consultation they are giving to other Members of your Lordships’ House. It is very welcome.
I too want to reflect on what was said by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, yesterday. Obviously, he is very concerned about the efficacy, if such efficacy exists, of deradicalisation programmes in prisons. I am given to understand that the successor to my short-lived appointment as Independent Reviewer of Prevent will soon be appointed. I wonder whether this afternoon, as a piece of instant gratification to us all, the noble and learned Lord, Lord Stewart, in replying to this debate may be able to tell us who that is going to be and announce the appointment. I am given to understand that it may literally be imminent.
During my time in that role, just as I came to the end of it as a result of an unwelcome judicial review, I was about to start the sort of examination that has been announced by Jonathan Hall. There is a background to it. A whistleblower came to see me from the prison where Usman Khan, the Fishmongers’ Hall terrorist, was held. On my advice, that person immediately spoke to officials at the Home Office and the Home Office was made aware of the problems. It is clear that deradicalisation programmes in prisons are not working at all well. Maybe some are working but nobody knows which ones are working and on whom.
I draw your Lordships’ particular attention to proposed new subsection (2) in Amendment 35 from my noble friend Lord Ponsonby, which sets out six criteria that need to be examined to see how these programmes are working. When I was the Independent Reviewer of Prevent, I had a review carried out of all the academic literature on Prevent, including these programmes. It exposed that no real measurement is being made of such programmes—no surprise given that the Fish- mongers’ Hall terrorist was thought to have been totally reformed. Before the programmes are put in place, they need to be carefully analysed and verified by proper, academic and, where possible, neurological research in which polygraphs are not an answer in themselves but a legitimate neurological tool as part of the armoury of an assessor.
I hope that the Government will recognise that these two amendments raise some serious issues that require the closest of examination.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, my name is to the amendment of the noble Lord, Lord Hunt. It would have been added to the amendment of the noble Lord, Lord Ponsonby, but I was caught out by the speed at which we suddenly arrived at these proceedings. I appreciate that there are differences between the amendments, including the time period for review, and the amendment of the noble Lord, Lord Ponsonby, is not confined to prisoners sentenced under Part 1. In particular, there is the criteria for assessment to which the noble Lord, Lord Carlile, referred.
Like others, I have been struck by Ian Acheson’s work. One of the many things that he has said that has been quoted widely is that:
“We cannot speak to dead terrorists. We can speak for dead victims. They demand that policymakers take risks to ensure that the people who wish to harm us through a corrupt ideology are engaged, not shunned. This should happen not because states are weak, but because they are confident the strength of their values will ultimately prevail.”
He has, of course, described prisons as incubators of radical behaviour. They are incubators of crime of all sorts: Islamic extremism, right-wing extremism, drug crime and other organised crime. Are there hothouses within the incubators? Given that resources are not infinite, what is the best balance between work in prison and work in the community? To pick up a point made earlier this afternoon, I do not regard the rights of offenders versus the public as being the issue; both are about effective means of achieving the safety of the public.
Programmes must be assessed and, no doubt, evaluation and adaptation is not a one-off but a continuing process. All this has a context: the conditions in our prisons. That is hardly a novel point. How suitable are those places for rehabilitation? How well trained are staff? Do they have the capacity to spot the signs of how prisoners are affected by other prisoners and by their experience of imprisonment?
I have not seen mention, though I am sure it has been addressed, of the recruitment of staff from Muslim communities, who may be alert to what non-Muslims would not see. In the interests of balance, I should refer—although I am not sure how—to those who might be thought of, in a prejudiced, caricatured way, as having right-wing sympathies. I am not sure how you would do that, but I want to make it clear that this is not a single issue.
If terrorists are segregated from the rest of the prison population, does that reinforce their beliefs and attitudes? Is there a cumulative experience? What if the terrorism is rooted in different, opposing ideologies? What are the vulnerabilities of prisoners to becoming radicalised? How different is that process from being drawn further into, say, drugs crime or other violent crime? Indeed, may it not require more sophistication and knowledge to draw someone into Islamist extremism, which, as I understand it—others will know much more about it—involves much teaching and studying of the Koran?
None of this can be separated from what goes on outside prison, including when a prisoner is on licence. The skills required by the probation service are considerable, especially in the face of what I understand to be increasing sophistication on the part of prisoners on licence regarding how to game the system—the noble Lord, Lord Carlile, may have referred obliquely to that. I cannot begin to answer my questions, and there are not nearly enough of them, but this is the moment to ask them.
Lord Faulks (Non-Afl) [V]
My Lords, I join other noble Lords in welcoming my noble friend Lord Wolfson to his position. I can say from experience that it is a challenging but rewarding post.
It is well understood that deradicalisation programmes are particularly challenging to evaluate. There is nothing new about this. I remember attending meetings in Brussels to discuss with my fellow Justice Ministers the problem of radicalisation in prison and the best response to it. There was no real agreement on that but my clear impression was that in 2015, we were already adopting a much more sophisticated approach to the problem than were other countries within the European Union. This is not some tedious pro-Brexit point: the whole purpose of our meeting was to try to share intelligence and work out the best response. However, even the most enthusiastic supporter of the various deradicalisation initiatives would acknowledge the difficulty of assessing their success or otherwise.
As I understand it, there are already a number of programmes deployed in prisons that are targeted at terrorist offenders, and I expect the Minister to tell us a great deal more about them. I have read what Jonathan Hall said about what are, effectively, offences that are committed in prison by the radicalisation of prisoners by other prisoners. This may well have happened in the case of the murder of three men in Forbury Gardens in Reading, which many noble Lords will remember all too clearly.
In 2016, Ian Acheson made a number of recommendations. A number of noble Lords have said that little progress has been made. I await the Minister’s comments on that, but I understood that quite a few initiatives had been taken, including training officers to spot signs of extremism and increasing the number of staff with specific counter-terrorism experience or knowledge.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
The noble and learned Lord, Lord Morris of Aberavon, is not on the call, so I call the noble Baroness, Lady Jones of Moulsecoomb.
Baroness Jones of Moulsecoomb (GP) [V]
My Lords, I would like to say everything I said on Amendment 7: we need effective rehabilitation, deradicalisation and reintegration of terrorist offenders. Right-wing extremism is growing. Research by HOPE not hate found that one in four people in Britain believe at least some element of QAnon conspiracy theories. These conspiracies allege that the world is run by satanic paedophiles who eat babies and want to kill 90% of the world’s population. The only logical solution for anyone who believes that is to fight and kill the people in charge, to stop it happening. The attack on the Capitol was only the beginning of such madness.
We are likely to see violence here in the UK too as a natural consequence of growing belief in these conspiracy theories. However, whatever the motivation of terrorists, the common theme is that they have been brought into such a deeply flawed belief system that they are prepared to inflict severe harm on other people. The only option is to repair those belief systems so that the perceived wrongs are no longer so severe as to justify harming innocent people.
I hope the Government can see that this problem will happen and will expand. We need better legislation to cope with it, and better practices inside and outside prisons.
Lord Robathan (Con)
My Lords, I listened carefully to the noble Lord, Lord Hunt, and agreed with a great deal of what he said—and I understood it all. I realised that that was because he is not a lawyer either. Nevertheless, even as just a layman, I think we all appreciate how hugely difficult this issue is. I also listened to the very sensible comments of the noble Lord, Lord Carlile; he has huge experience of this matter. It is terribly complicated, and wishful thinking will not make it go away.
The strategy we are talking about is very important, but this has been going on for at least two decades and I do not have total confidence in deradicalisation or rehabilitation. Neither does Jonathan Hall, who is currently carrying out his review. We talk about rehabilitation but Usman Khan—who the noble Lord, Lord Carlile, mentioned—killed his mentor, Jack Merritt, who believed in his redemption and had faith in his deradicalisation, because Khan managed to lie successfully. Do polygraphs and lie detectors find this out? I do not know.
I agree with many of the points made by the noble Lord, Lord Carlile, and others. This hugely complicated issue needs further thought and deep consideration of how, if at all, we can solve these problems. With religious fanaticism or a fanatic ideology, is it possible to deradicalise people? I do not know. Are we talking about what was mentioned earlier, those no-hope sentences? I hope not. Should we throw away the key as the noble Baroness, Lady Jones, suggested some of us want to do? I hope not, because I think people have to have some hope. However, I do think we need to have greater depth of thinking in this. I say to the Minister that we need to be looking at this in such depth that it may be we are still discussing it in a year’s time.
Lord Woolf (CB) [V]
My Lords, in view of the speeches we have had from a number of noble Lords, there is nothing which I would want to detain noble Lords with regarding this amendment. I agree that it serves a useful purpose and particularly associate myself with the remarks made by the noble Lord, Lord Carlile, with regard to the openness of the Front Bench on behalf of the Government. Like him, I hope that will be something that will happily continue.
Lord Paddick (LD) [V]
My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to his first Bill. In my limited contact with him, I think that he is more than a match for the challenge the noble Lord, Lord Faulks, alluded to. I completely agree with the noble Lord, Lord Hunt of Kings Heath, in his assessment of the current dangers of longer prison sentences in the absence of an effective programme of deradicalisation and rehabilitation. The noble Lord, Lord Carlile of Berriew, also mentioned the comments of the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. His concerns seem to chime with the concerns of all noble Lords who have spoken in this short debate. I do not share the faith that noble Lords have in polygraph testing, for the reasons explained earlier by Lord Marks of Henley-on-Thames.
My noble friend Lady Hamwee rightly expressed concerns that prisons continue to be incubators, hothouses, or academies of crime—use which term you will—for crime generally, as well as places where vulnerable inmates are radicalised, whether by right wing extremists or by others. If ever there was evidence of the need for these amendments, it is what the Government describe as the
“range of tailored interventions available”—[Official Report, 21/9/20; col. 1650]
to the perpetrators of the Fishmongers’ Hall and Streatham atrocities, that were designed to deradicalise and rehabilitate them while they were in prison. Unless and until the deradicalisation and rehabilitation of offenders is effectively applied to those sentenced under Part 1 of the Bill, and its impact is assessed, there is a real danger that the longer these terrorist offenders spend in prison, the greater the threat they pose to the safety of the public—whether by radicalising others in prison or directly upon their release. I intend to expand on these statements and the comments of the noble Baroness, Lady Jones of Moulsecoomb, which I agree with, when we come to the group beginning with Amendment 16.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, my Amendment 35 is in this group. I agreed with everything my noble friend Lord Hunt said when he introduced his amendment. My amendment is different in detail, but the overall approach is the same—that is, to have a realistic and timed review of the various approaches to the Prevent programme which the Government is embarking upon.
I got an interesting briefing on this debate from the probation officers’ trade union, Napo. It made a couple of points, which I will repeat. It said that in the offender management and custody model, it indicates that a high-risk offender should get one hour of individual contact per month with a probation officer. A probation office’s staff have a minimum of 70 clients, so it is impossible for them to meet that requirement. The central point that Napo made in the briefing was that, when one reviews approaches and puts down procedures, the reviews need to result in practical change on the ground, otherwise they are destined to be repeated without effective change.
I was very interested to hear the contribution of the noble Lord, Lord Faulks, who was a very effective Minister. He talked about his experience in that role. He also, interestingly, talked about the status of prisoners when they are in prison. I occasionally visit prisons, and I have visited Belmarsh on a couple of occasions. Belmarsh is a prison within a prison and there is undoubtedly status for the people on the inside prison; you can tell it from the tone of voice of the prison officers when they talk about the facility they are involved in managing. There is status to be gained through the way you are treated while in prison. I unfortunately know that to be true through friends of friends whose children have ended up in prison. There is a status to be gained within prison, which sometimes young men cannot have when they are outside prison.
I welcome the review of terrorism legislation by Mr Hall. I also note that it is Mr William Shawcross who has been appointed to review the Prevent programme, and I know he has extensive experience on this matter. The purpose of both these amendments is to tease out the progress and practical changes which the Government hope to make through reviewing the Prevent programme.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to both noble Lords for their amendments, which bring us to a very important set of issues. I discern that the Committee is united in believing that data is necessary in order that we might, as much as possible, develop and devise schemes by which deradicalisation can be accomplished. The Government do not think that a new strategy for rehabilitation and disengagement nor a review of the current delivery is beneficial at this time. However, to reassure noble Lords, I want to briefly set out the important work being done in prisons and probation to turn terrorist offenders away from extremism so that they can be released safely. The Government have a clear strategy for rehabilitation programmes for terrorist offenders. The important work in prison and probation here delivers against the Contest strategy, which was recently refreshed and published. Since then, significant work has been done to strengthen our approach to rehabilitation and disengagement of terrorism offenders. This strategy applies to all terrorism offenders, not only those who will receive the new serious terrorism sentence or be subject to the changes made by Part 1 of the Bill.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I am grateful to all noble Lords who have taken part in what has been an important and fascinating debate. The noble Lord, Lord Carlile, backed up by the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Paddick, paid tribute to the noble and learned Lord, Lord Stewart, and the noble Lord, Lord Wolfson, for their approach from the Front Bench. We have seen from the full reply of the noble and learned Lord, Lord Stewart, that that is endorsed by me and other Members of your Lordships’ House.
I do not pretend that this is easy. As both the noble Lords, Lord Carlile and Lord Faulks, said, deradicalisation programmes are difficult to evaluate, and we should not underestimate the challenge that any Government would face. But, as the noble Baroness, Lady Hamwee, said, there are some pertinent questions to be asked about the deliverability of the current programmes in relation to deradicalisation and the skills required by staff in prison.
The noble Baroness, Lady Jones, mentioned the importance of considering right-wing extremism as terrorism too, and I endorse that. I also endorse the implication from the noble Lord, Lord Robathan, that we as lay people have something to say in these matters. Indeed we do, and I always believe it right that in some of these technical debates we hear from lay people and not just people within the legal and policing professions.
My visits to prisons in my two years as Minister in the Ministry of Justice some years ago taught me about the power of good rehabilitation programmes, which is why I am so keen that the Government have a proper cohesive strategy for taking this forward. I also believe that, as a lay person, I bring a strong sense, as the noble Lord, Lord Paddick, said, that it is not right for the House to agree to these longer sentences without having some guarantees of the cohesive programme of rehabilitation and deradicalisation that needs to go with it.
I welcome Amendment 35, tabled by my noble friend Lord Ponsonby. It is different in detail but, as he said, overall our approach is the same. He was right to point out some of the practical issues involved, such as the fact that probation officers’ workload is so heavy, and the real issue in prisons: the cuts to front-line staff, which have caused such a problem to the whole estate and undermined the rehabilitation culture.
The noble and learned Lord, Lord Stewart, in his long, generous wind-up, emphasised the importance of data. He also set out some of the initiatives that the Government have taken since Ian Acheson’s report. I was grateful to him. He also referred to a number of achievements. The question is whether those are sufficient. From my point of view, I doubt that they are. Clearly Mr Hall’s review is a potential game-changer, and it is sensible to see its outcome. None the less, the Bill is an opportunity to ensure that, whatever that outcome, there is a requirement on the Government to come forward with a cohesive strategy. I think we ought to return to this on Report. Having said that, I thank all noble Lords and beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We now come to the group beginning with Amendment 11. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 27: Removal of early release for dangerous terrorist prisoners: England and Wales
Amendment 11
Lord Falconer of Thoroton
“and the prisoner was aged 21 or above at the time of their conviction”
Lord Falconer of Thoroton (Lab) [V]
These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.
There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.
Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.
Lord Thomas of Gresford (LD) [V]
The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.
“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.
The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.
Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.
I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained, Amendments 11, 13 and 14 are intended to retain the current release provisions for under-21s sentenced to an extended determinate sentence for a serious terrorism offence. As has been mentioned, the Fishmonger’s Hall and Streatham attacks revealed the devastating consequences of releasing terrorist prisoners too early. In the Bill, we are changing the release arrangements for all offenders convicted of serious terrorism offences to ensure that the most dangerous and serious terrorist offenders serve their full custodial term, essentially for two reasons—first, to reflect the severity of their crimes but, secondly and perhaps more importantly, the intention to preserve lives.
The amendment seeks to draw a distinction in release policy between those aged over 21 and those younger. However, the Bill will introduce changes to release for both adult and youth offenders sentenced for serious terrorism offences. The extended determinate sentence already operates in the same way for adults and youths in every other aspect, and because the nature of the offending and the threat posed is so severe, these changes should align with that pre-existing approach.
For those aged under 18, instances of terrorist acts occur, although, thankfully, they are rare. I shall come back to that point later. Among those under-18s are some who are capable of extremely serious offending and present a real threat to the public. They are the dangerous few youth offenders that these provisions aim to capture. This measure, therefore, is about offenders who have been deemed dangerous by the court. That also means that, when sentencing the offender to an extended determinate sentence, the judge would have already taken into account age and other relevant factors.
In that context, I turn to the points raised by the noble and learned Lord, Lord Falconer. As to the possibility of change, one has to remember that this measure is about public protection and applies only to the most serious young offenders who have committed terrorist offences that carry a maximum sentence of life and have been deemed dangerous by the court.
We are alert to the point on prisoner management and have carefully considered it. There are a number of programmes within prison to make sure that the sentences proposed here do not adversely affect prison management within the institution. Although, as the noble and learned Lord, Lord Falconer, correctly said, the prisoner is likely to end his sentence as an adult, the fact is that even when sentenced at the time, the nature of the offences mandate the sort of sentence we now propose.
As to the point made by the noble Lord, Lord Thomas of Gresford, on radicalisation in the prison system, there are, as my noble and learned friend Lord Stewart pointed out, a number of interventions in the prison system designed to prevent radicalisation. They are extensive. I will not go over the points that he made earlier but I repeat and endorse them. As I said—I said that I would come back to this point—the number of young offenders in this regard who have been radicalised in prison is extremely small. We are alive to the noble Lord’s point, but do not believe that that is a reason not to proceed in the way in which the Bill is currently drafted.
Finally, and only because I wish to reassure the noble and learned Lord, Lord Falconer of Thoroton, that I read all his amendments with extreme care, these seem to be technically defective, given that the wording is to be added after the close of quotation marks and, on the face of it, would appear to apply only to new Section (2A)(iv), and affect only the provisions related to service personnel. However, I hope that I have approached his amendments on their merits. For those substantive reasons that I have set out, I respectfully invite the noble and learned Lord to withdraw or not move his amendments.
Lord Falconer of Thoroton (Lab) [V]
I am grateful to the noble Lord, Lord Wolfson of Tredegar, for the careful way in which he dealt with my amendments. I fully accept and am guilty of the technical error he identified. He was kind to deal with the merits of the three amendments. I very much hope that the Government will reflect on what I and the noble Lord, Lord Thomas of Gresford, said because it is a considerable mistake to treat the under-21s the same as those who are 21 or over, particularly with regard to public safety. We will return to this matter at a later stage. With the leave of the Committee, I will withdraw my amendment.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group consisting of Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Amendment 12
Baroness Prashar
“Release on licence for prisoners serving a serious terrorism sentence: England and Wales
(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 244(1) (duty to release prisoners on licence) after “247A” insert “, 247B”.(3) After section 247A insert—“247B Release on licence of prisoners serving a serious terrorism sentence(1) This section applies to a prisoner (“P”) who is serving a serious terrorism sentence under section 268A or 282A of the Sentencing Code.(2) It is the duty of the Secretary of State to release P on licence in accordance with subsections (3) to (6).(3) The Secretary of State must refer P’s case to the Board—(a) as soon as P has served the requisite custodial period, and(b) where there has been a previous reference of P’s case to the Board under this subsection and the Board did not direct P’s release, not later than the second anniversary of the disposal of that reference.(4) It is the duty of the Secretary of State to release P on licence under this section as soon as—(a) P has served the requisite custodial period, and(b) the Board has directed P’s release under this section. (5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred P’s case to the Board, and(b) the Board is satisfied that it is no longer necessary for the protection of the public that P should be confined.(6) It is the duty of the Secretary of State to release P on licence under this section as soon as P has served the appropriate custodial term, unless P has previously been released on licence under this section and recalled under section 254 (provision for the release of such persons being made by section 255C).(7) For the purposes of this section—“appropriate custodial term” has the meaning given in section 268C of the Sentencing Code in relation to a sentence under section 268A of the Code, and in section 282C of the Sentencing Code in relation to a sentence under section 282A of the Code;“the requisite custodial period” means—(a) in relation to a person serving one sentence, two-thirds of the appropriate custodial term, and(b) in relation to a person serving two or more concurrent or consecutive sentences, the period determined under sections 263(2) and 264(2).””
Baroness Prashar (CB) [V]
My Lords, the principle aim of the amendment is to ensure that the Parole Board retains its vital role in assessing risk to determine the safe release of terrorist offenders given a serious terrorism sentence or an extended sentence. I am grateful to the noble Lords, Lord Anderson and Lord Ramsbotham, for supporting the amendment.
The amendment would remove Clause 27 and replace it with a new clause, which would provide for parole-authorised release for terrorist offenders given a serious terrorism sentence in England and Wales. The amendment is modelled on equivalent provisions on the extended sentences contained in Section 125 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In line with these provisions, an offender sentenced to a serious terrorism sentence would become eligible for parole-authorised release at the two-thirds point in their sentence. The release test applied is the same as those for other sentences for dangerous offenders, whereby the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. If that test is not met, the amendment provides for the offender to be retained in prison until the end of the custodial term. During that period, the offender is entitled to a parole hearing to reconsider their case every two years.
It should be noted that the changes to serious terrorism sentences introduced by the amendment would apply only in England and Wales. Equivalent provisions for Scotland and Northern Ireland would need to be drafted for the changes to be fully workable. The amendment would also remove the changes to the release arrangements for terrorist offenders given an extended sentence in England and Wales introduced by Clause 27. Following the deletion of Clauses 28 and 31, other amendments would be needed to make equivalent changes to extended sentences in Scotland and Northern Ireland. This would mean that convicted terrorist offenders sentenced to an extended sentence for which the maximum penalty is life would continue to be eligible for parole-authorised release at the two-thirds point.
This amendment addresses the concerns raised by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, as well as by me and a number of other Peers on Second Reading. They relate principally to how the new serious terrorism sentence and the changes to the extended sentence will result in a loss of the benefits of both a risk assessment and an incentive to reform which the parole process provides.
The parole process contributes to public protection in a number of important ways. First, it helps to ensure that dangerous people are not released when they would represent an unacceptable risk to the public. The Parole Board deals with some of the most serious and complex cases in the justice system. It rightly takes a cautious approach when assessing whether the statutory release test by Parliament is met. However, it also decides that around 10,000 prisoners need to stay in prison for the protection of the public. This means that fewer than one in four prisoners meets the Parole Board’s stringent release tests.
Secondly, parole hearings provide an opportunity to give careful consideration to the risk presented by an individual and to put in place arrangements to mitigate the risk, if they are authorised for release. While no system for assessing future risk can ever be perfect, the Parole Board has an excellent track record when it comes to limiting the dangers posed by offenders on release. As Jonathan Hall has stated, with the new serious terrorism sentence and changes to the release arrangements for terrorist offenders serving extended sentences,
“the opportunity to understand current and future risk at Parole Board hearings has been removed.”
Thirdly, the parole process provides hope and incentive for good behaviour and rehabilitation, particularly for offenders serving lengthy sentences. It can act as an encouragement for prisoners in the often difficult work of rehabilitation and reform. Poor behaviour and lack of engagement inevitably lessen the chance of release at parole hearings. Removing parole-authorised release removes a clear incentive for prisoners or authorities to engage in efforts to address their offending behaviour. It also reduces incentives for prisoners to comply with the prison regime more generally, which could put staff at risk of violence.
The changes introduced in the Bill also give rise to some significant anomalies in the sentencing framework for terrorist offenders. Under the provisions of the Bill, a life sentence will continue to be the most severe penalty available to courts. Unless an offender is given a whole-life sentence—there are currently just 62 prisoners with this sentence—these prisoners will be ineligible for consideration by the Parole Board once their punishment period is served. However, under the new serious terrorism sentence, an offender receives a 14-year minimum sentence, which must be served in full. Once that term is served, the prisoner is released automatically on an extended licence, without a risk assessment. Similarly, a terrorist offender given an extended determinate sentence, convicted of an offence for which the maximum penalty is life imprisonment, would have to serve the entire custodial term. However, once that term is served, they are released automatically on an extended licence—again without a risk assessment.
These provisions are also more confusing given the welcome changes that the Government have made elsewhere to strengthen the role of the Parole Board in its risk assessment of less serious terrorist offenders. In February 2020, the Terrorist Offenders (Restriction of Early Release) Act ended the automatic release of terrorist offenders at the halfway point of their sentence. Under this Act, these prisoners will be released only at the two-thirds point of their sentence if they can satisfy the Parole Board that their risk can be safely managed in the community.
It is surely worth considering parole participation in these new sentences to ensure that the benefits of both risk assessment and incentives to reform afforded by the parole process are not lost. As chairman of the Parole Board from 1997 to 2000, I have seen the incentives that parole provides at first hand. I too welcome the two new Ministers to the Front Bench and the open way in which they have engaged in Committee. I look forward to the Minister’s response, and I hope that he spells out for me the rationale for removing parole from this set of offenders.
Lord Anderson of Ipswich (CB) [V]
My Lords, it was an honour to put my name to this amendment, moved by the noble Baroness, Lady Prashar, with her experience as a former executive chair of the Parole Board for England and Wales. As she said, Clause 27, which this amendment would replace, aims to remove the role of the Parole Board in the case of certain dangerous terrorist offenders who have been given a determinate sentence. Clause 27 would do this by amending Section 247A of the Criminal Justice Act 2003, itself dating from only last year, which currently requires the Secretary of State to refer terrorist offenders serving any determinate sentence to the Parole Board at the two-thirds point of the custodial term.
There are instinctive attractions—including, no doubt, electoral attractions—in providing for all dangerous terrorist offenders to serve their entire sentences in prison. But the notion that such offenders are uniquely incorrigible is not supported by the facts. I remind the Minister of a Written Answer that I received from the noble and learned Lord, Lord Keen, last February, revealing that, of the 196 terrorist offenders released from prison in England and Wales in the seven years from January 2013, only six—barely 3%—had committed another terrorist offence by the end of that period. This illustrates a pattern of surprisingly low terrorist recidivism rates around the world, expertly analysed by Andrew Silke and John Morrison in an ICCT policy brief of September 2020 aptly entitled Re-offending by Released Terrorist Prisoners: Separating Hype from Reality.
This is not an argument for complacency. It most certainly does not mean that all is well in our prisons, but it is something to consider before we dispense with the Parole Board in the circumstances that Clause 27 would effect.
My successor but one as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has been referred to today with wholly justified approval by at least two Ministers and numerous other noble Lords, so we should listen to the three reservations that he has voiced on Clause 27. First, it would remove the possibility of early release
“as a spur to good behaviour and reform for offenders who are going to spend the longest time in custody”.
At the same time, it would deprive the prison authorities of an important tool for prisoner management. Secondly, it would remove the opportunity to explore current and future risk at Parole Board hearings. Thirdly, it would remove the opportunity for early release of
“child terrorist offenders, whose risk may be considered most susceptible to change as they mature into adults”.
I endorse what the noble and learned Lord, Lord Falconer, said about that and the public safety implications in the last group.
Those reservations are addressed by this amendment and by the following group. I look forward to hearing what the Minister, whom I welcome warmly to his place, has to say about them.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We have been unable to reach the noble Lord, Lord Ramsbotham, so we now move to the noble Lord, Lord Faulks.
Lord Faulks (Non-Afl) [V]
My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.
I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.
I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.
The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.
The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.
Lord Carlile of Berriew (CB) [V]
My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.
It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.
I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.
In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.
Lord Falconer of Thoroton (Lab) [V]
This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.
The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.
Lord Wolfson of Tredegar (Con)
My Lords, in this amendment the noble Baroness, Lady Prashar, whose experience in this area is profound, proposes replacing Clause 27 with an amended set of provisions. Certainly as I read them, their effect—and to deal immediately with the point raised by the noble and learned Lord, Lord Falconer of Thoroton—is to provide that all prisoners subject to an extended determinate sentence or a serious terrorism sentence would be eligible for relief by the Parole Board at the two-thirds point of their custodial term. In concept, therefore, this is similar to the intention tabled by the noble Lord, Lord Marks of Henley-on-Thames, which he referred to— we will come to it shortly—as he opposes Clause 27 standing part of the Bill. With this amendment, the noble Baroness goes further: to replace Clause 27 with a new provision. If I may say respectfully, the noble Baroness is correct to identify that without Clause 27 there must be some replacement provision included to provide the legislative authority to release those sentenced to the new serious terrorism sentence.
Baroness Prashar (CB) [V]
My Lords, I thank the Minister for a very open response and all other noble Lords who have spoken in this debate. I support and agree with my noble friends Lord Anderson and Lord Carlile and the noble Lord, Lord Marks, because the points they made reinforce the points I was making. I respectfully disagree with my noble friend Lord Faulks about governors setting the licence conditions. Although the Minister explained carefully how that will be done, I do not see why that should replace an assessment made by the Parole Board, which has a great deal of experience in assessing risk.
Having said that, I think the principles of why parole is an essential part of our criminal justice system have been rehearsed. It is about public protection and the better management of prisoners. I do not think that it is fair to say that early release could lead to false compliance, because those who assess risk are very familiar and can assess whether the prisoner is serious or it is a false claim. I very much hope that the Government will consider the points made in the course of this debate. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
Noble Lords should be aware that the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have withdrawn from this debate, so the speaker after the noble Lord, Lord Marks, will be the noble Baroness, Lady Prashar. I call the noble Lord, Lord Marks.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, as was said on the previous group, Clause 27 as it stands would mean that offenders serving serious terrorism offences sentences and those serving extended determinate sentences for an offence carrying a possible sentence of life imprisonment would be excluded from the operation of subsections (3) to (5) of Section 247A of the Criminal Justice Act 2003. Those subsections presently govern the involvement of the Parole Board in the release of offenders at the two-thirds point of their custodial term.
In answer to some who spoke about early release in the debate we have just had, the description of release at the two-thirds point, which is what is largely envisaged, is not, on our traditional understanding, early release. We have long recognised that there is a benefit in a remission system whereby release generally takes place at the two-thirds point of a custodial term before the offender’s sentence has been concluded.
As the noble Lord, Lord Anderson, pointed out, subsections (3) to (5)—the present arrangements—were themselves the result of the Terrorist Offenders (Restriction of Early Release) Act, the so-called TORER Act, which we passed last year, ending release on licence after the halfway point in an offender’s sentence. However, in the section concerned, we preserved the role of the Parole Board in cases where generally an offender had served two-thirds of his custodial term. That was emergency legislation. I invite the Minister to explain what has changed to justify removing the Parole Board’s involvement since that emergency legislation, which retained it. I venture to suggest that no further justification has arisen since we passed that Act.
Subsections (3) to (5) presently require referral by the Secretary of State to the board for consideration after the completion of two-thirds of the required custodial period, then consideration by the board as to whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained. Only if it is so satisfied does the board direct release on licence. The effect of Clause 27 on the offences to which it applies is that release before the conclusion of the custodial term is excluded altogether and the Parole Board is not to be involved in relevant offenders’ release. Clause 28 and Schedule 10 apply similar provisions to Scotland, and Clause 31 to Northern Ireland.
One effect of removing the prospect of early release is that the Bill removes an incentive to behave acceptably in prison, which makes offender management in prisons far more difficult. It also makes it less likely that prisoners will engage with deradicalisation programmes within prisons—partly because there will be less incentive for them to do so, but also because deradicalisation, like rehabilitation more generally, is advanced by hope and inhibited by hopelessness. It would increase, in those subject to these sentences, the sense of hopelessness, powerlessness and hostility in prison from all around; I urge those who argue that hope and some sense of power in a prisoner’s own destiny are important to the welfare of society at large to accept the weakness of that position.
One reason why I make these points is that all those subject to these sentences will be released one day, unless their sentences outlast their lives; for that reason, their rehabilitation is important. Nor should we forget that the reoffending rates for terrorist offences are in fact low, as the noble Lord, Lord Anderson, pointed out when he referred to the response to the Question he raised last February, in which the Ministry of Justice calculated a recidivism rate of 3.06% for terrorist offences, as opposed to a rate of 28% for other offences. Of course I take the point made by the noble Lord, Lord Faulks, that any reoffending by a terrorist offender is or may be disastrous, but I venture to suggest that excluding any involvement of the Parole Board, with its wealth of experience in weighing up risks to public safety, would be an unhelpful way of improving public safety; indeed, it would not improve public safety at all.
The central question that the Parole Board is directed to consider is whether continued detention is required by a continuing risk to the safety of the public. The noble Baroness, Lady Prashar, repeatedly described this as risk assessment; that was the correct description. She rightly highlighted the importance in this process of the Parole Board and its hearings. Of course I accept in all this the point made in response to her amendment by the noble Lord, Lord Wolfson, that a replacement for Clause 27 would be required if that clause were to go. Whether or not that would have been the replacement proposed in Amendment 12 by the noble Baroness and others matters not. What does matter is that the present proposal does not help public safety, and has very serious adverse ramifications.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I call the next speaker, the noble Baroness, Lady Prashar. No? We will come back to her. Let us try the noble Lord, Lord Anderson of Ipswich.
Lord Anderson of Ipswich (CB) [V]
My Lords, I have once again signed up to the amendments tabled by the noble Baroness, Lady Prashar. I do not want to repeat what I said on the last grouping, so I will raise just two additional points. The first is the risk of inconsistency that Clause 27 and its companions could bring into the law. They of course apply only to determinate sentences, so does this not raise what the independent reviewer has described in a recent series of tweets as the
“uncomfortable possibility that offenders may be ‘better off’ if sentenced to life imprisonment than extended sentences”?
He illustrated that observation with the case of the Anzac Day plotter—recently released on the recommendation of the Parole Board, having been convicted at the age of 15—and the decision last week of the Court of Appeal in the case of the St Paul’s suicide bomb plotter. The Minister and others might want to reflect on those cases, and on the observations of the independent reviewer before Report, when I suspect that we may need to come back to this.
Secondly, since the Minister accepts that the prisoners who would be affected by Clause 27 are not always incorrigibly violent, and since he does not take issue with what I said about the very low terrorist recidivism rates, is he not tempted to accept that there might be cases—perhaps rare—in which the Parole Board would feel able to recommend their release?
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We still cannot reach the noble Lord, Lord Ramsbotham, so I call the noble Lord, Lord Naseby.
Lord Naseby (Con) [V]
My Lords, the Bill makes a welcome change to the sentencing, release and monitoring of terrorism offenders by toughening up the law. This is a time of higher risk—something that has not been referred to by our noble friends the lawyers. I am no lawyer, but I study the Middle East and south Asia in some depth, and I have lived abroad for a number of years. I have very good contacts in those parts of the world and, in my judgment, the risk of terrorism at this time is higher than we have ever experienced.
I might say as a side issue that I get concerned when organisations such as Human Rights Watch, Amnesty International and others call vociferously for the deletion of Clauses 37, 38 and 40. I am, frankly, not impressed by their objectivity. I wish I could be, but they and others I could mention, such as Freedom from Torture, do not in my experience bring objectivity to these types of cases. I contrast that with the work of the International Committee of the Red Cross, the ICRC—although it is not involved in these cases on the whole—and Médecins Sans Frontières, both of which are involved in issues relating to torture, and they are very objective in their assessments.
It is objectivity that one wants. The British public has to understand and be convinced that any change that is made will help to deal with terrorism. I think, on having looked at the Bill, that Clause 27 is right. It is all very well for noble Lords to say that the numbers who abscond or the cases where people are released early are small, but the number of people who were killed in Manchester was not small. In most places where there is terrorist activity, the numbers are not small. I see my role in the upper House as being one where I look after the British public. It is not a risk assessment. The only risk is that someone will reoffend. When facing the challenge of that situation, I do not think that we can suggest to the British public that some of these men and women who have carried out heinous crimes should be released early on an objective risk assessment.
I make one other point. As it happens, I am doing a bit of work on national service, something which older Members of your Lordships’ House may well have done in the Army, the Royal Navy or the Royal Air Force. In my case, I was a pilot in the air force. I think of myself at the age of 21. We were all 18 years old when we did our national service. We were young men who were risking our lives and we were ready to fight; many lost their lives. I wonder whether 21 is too high an age; I personally would drop it to 18, which was the age at which you had to do your national service. However, that goes rather wider than what we are considering here.
As far as I am concerned, the Government are taking absolutely the right road. We have to toughen up on sentencing and we have to toughen up on early release and the monitoring of offenders because the risks at this point in time are very real.
Lord Thomas of Gresford (LD) (V)
My Lords, by coincidence I am once again following the noble Lord, Lord Naseby. I would remind him that there have been high-risk periods before. His words reminded me of the Brighton bomb case, in which I took a part. The person I represented had been involved in a bombing campaign that covered some 28 seaside resorts, and the Brighton bomb case was the final one. When I look at Clause 31, I reflect on that case, because that clause, like the other clauses we are dealing with, is the one which says that there should be no parole for terrorism offences committed in Northern Ireland. In the Brighton bomb case, those who were convicted and sent to prison within weeks of the Belfast agreement were returned to Northern Ireland to serve out their sentences there—and within a very short time they were released. We have faced problems like this before.
The benefits of a two-thirds release system have been outlined by previous speakers: they encourage people to behave while in prison and to engage in deradicalisation and rehabilitation courses. That is done to persuade the Parole Board that the individual is safe to be released—to advance by hope and decrease hopelessness, as my noble friend Lord Marks put it. The Parole Board ought to have a role in this, and I was impressed by the views expressed by the noble and learned Lord, Lord Falconer, that perhaps the Parole Board should at least have a role in advising on the conditions of release as opposed to the governor taking on the role, as is being proposed.
There are dangers in automatic release at the end of a sentence. No doubt the full sentence has been completed, but the automatic release at the end of that time without any Parole Board involvement is a danger, as my noble friend Lord Marks and the noble Baroness, Lady Prashar, have argued. I do not think that the solutions that have been developed and put into the Bill are necessarily the right ones, so I support my noble friend in his attempt to have these clauses removed.
Lord Ponsonby of Shulbrede (Lab) (V)
My Lords, we have had interesting debates on both this and the previous group. In closing the previous group, the Minister said that the proposed lack of involvement of the probation service in this particular group of prisoners was a consequence of the sentencing structure and was not a reflection on the Parole Board itself. I understand the point he has made, but what has been said repeatedly on both groups is that there is expertise in the Parole Board. My noble and learned friend Lord Falconer asked whether there were two elements here. One is the possibility of early release, while the second is a point raised again just now by the noble Lord, Lord Thomas, about the conditions of release for a prisoner who has served their whole term. I do not understand why that level of expertise should not be accessed when considering these types of prisoners.
I shall make a couple of other brief points which are different from those which have been made by other noble Lords. They arise from briefings that I have had from the trade unions. The Prison Officers’ Association believes that removing hope from prisoners puts its staff at risk. It is a point that the association makes repeatedly and is an important one to feed into this debate. The second point has been made by the National Association of Probation Officers—that is that the workload of probation staff working on the ground in prisons is so high that they are not managing to deliver to their required standards. They are being allocated around 70 prisoners each. I understand that the Minister has talked about these various programmes, and I know that we are talking about a very extreme group of prisoners. Nevertheless there is the practical working position of prison officers, probation staff and others in prisons to consider in trying to make these institutions work and to reduce recidivism when prisoners are released.
Even so, both the group of amendments we are speaking to now and the previous group illustrate the potential for changing the Bill to bring the Parole Board back in. That would reduce the potential risk to the public.
Lord Wolfson of Tredegar (Con)
My Lords, the Committee will appreciate that there is a significant overlap between this and the previous group. I hope that the noble Lord, Lord Marks of Henley-on-Thames, and indeed no other participant in this debate, will regard it as discourteous if on some occasions I take as read, as it were, points that I made in the previous debate. If the Committee finds it helpful, I propose to say a few words about each of the clauses and schedules to which objection has been taken and then come back to address some of the particular points raised by participants in the debate.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we have had two serious and thoughtful debates on the last two groups, and I am very grateful to all noble Lords who have spoken and to the Minister, who, on his first outing on a Bill, has undoubtedly impressed us all with the care and the courtesy with which he has approached the amendments discussed today. We have one further group today, but nevertheless I express the hope that further consideration between now and Report will persuade him and some of his colleagues in government to compromise when they see the faults of some of these amendments.
All of us—and I say to the noble Lord, Lord Naseby, not only those who see Clause 27 as an unmitigated, good toughening-up of terrorist sentencing—approach these issues from the perspective of what is best for public safety. That involves consideration of how to improve behaviour, and with behaviour the atmosphere, in prison.
I take the important point made by the noble Lord, Lord Ponsonby, about the safety of prison staff. It involves consideration of how to avoid reoffending, how to rehabilitate and deradicalise even terrorist prisoners, and how to ensure fundamentally that when prisoners are released, that release is safe.
The Minister responded to my question on what has changed since the TORER Act to justify the removal of consideration by the Parole Board of the release of offenders, or removal of release at the two-thirds point, but for the moment I am not sure that I accept the distinction that he made, though I will read what he said with care.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We now come to the group consisting of Amendment 15. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 15
“Parole Board
(1) The Secretary of State must, within three years of this Act being passed, lay before Parliament a report on whether the removal of the Parole Board from considering certain types of terrorist offences leads to bad behaviour in prisons.(2) A Minister of the Crown must make an oral statement in the House of Commons on his or her plan to address any issues identified in the report no later than three months after it has been laid before Parliament.”
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I will be very brief on this amendment. The two previous groups have been groups of substance, and serious questions have been asked about the way forward. The amendment in my name would create provisions for a review of whether the removal of the Parole Board from considering certain types of terrorist offences leads to bad behaviour. That is a central point in many ways in the last two groups, but it has also been mentioned as an issue in many of the amendments that we have discussed today. I beg to move.
Baroness Jones of Moulsecoomb (GP)
My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to our House. It is brave of him to start his parliamentary career in your Lordships’ House by going up against so many noble and learned Lords. It is going to be absolutely fascinating watching that.
I congratulate the noble Lord, Lord Ponsonby of Shulbrede, for bringing this amendment. I wish I had signed it, because it is very good. It is about whether we want to rehabilitate prisoners and bring them back into society or just want them to rot away and hope they disappear.
I am sure noble Lords will know that the new independent reviewer of Prevent has been announced. It is William Shawcross, whom I do not know at all. As somebody who is a critic of Prevent—I have seen the good and the bad in it—I would say that the optics are not good. Having a white man from Eton and Oxford is possibly not the message that this Government should be sending out when you have critics of a programme that could have been fantastic.
I saw one case of a Prevent programme—in Birmingham, I think—where a young man had been recovered, or rehabilitated, from a radical programme. He had been a right-wing activist, but he responded to being found a job and a house. I am not saying it is always this easy, but rehabilitation was based on taking him out of poverty and deprivation. That is something that we do not see enough of.
However, to return to the amendment, it would require the Government to review the situation and report to Parliament, and I support it very strongly.
Lord Carlile of Berriew (CB) [V]
My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.
The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.
I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.
Lord Paddick (LD) [V]
My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.
The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.
Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.
According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.
Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.
Lord Stewart of Dirleton (Con)
My Lords, this amendment would require the Government to report on whether the removal of Parole Board consideration of certain prisoners’ release impacts their behaviour in prison. We return once again to the quite proper desire of the Committee for objective data to allow proper evaluation of the usefulness of measures. The point is an important one, but the Government do not think that a review and a report such as the amendment proposes would be practical or beneficial at this time. I will set out why in brief terms.
To carry out such an exercise would require there to be clearly defined factors influencing prisoner behaviour in custody, against which one could evaluate the distinct impact of the prospect of Parole Board consideration in a sentence. Such an evaluation method is simply not feasible. It would be impossible to measure the behavioural effect of a prisoner sentenced under provisions in this Bill expecting a future Parole Board hearing, compared to a counterfactual in which the Parole Board would consider the case. The amendment goes further, implying that the removal of Parole Board referral for some cases could impact on prisoner behaviour more widely. This would be even more impracticable to assess.
The policy intent across these measures is clear; the sentences available to the courts for terrorism offences should be proportionate to the gravity of these crimes and provide confidence for victims and the public. In some cases, this will mean that terrorist offenders spend longer in custody before release. To provide some reassurance further to what we have given from the Dispatch Box this afternoon about what will be done in that additional time in custody, I will make two remarks.
First, there is the hard work of prison staff with prisoners in their care, whatever their sentence or release arrangements. As your Lordships will have gathered, we deploy specialist counterterrorism staff to work with terrorist offenders, and we are recruiting more of these officers than ever before through the counterterrorism step up programme.
Secondly, the new counterterrorism assessment and rehabilitation centre, which your Lordships have heard about from the Dispatch Box, will drive the development, innovation and evidence-based delivery of our rehabilitative interventions. The centre will transform our capability to intervene effectively with terrorist offenders, including those sentenced under this Bill and those who will be released automatically. The Bill will be scrutinised in the usual way, including a statutory review after three years.
I now turn to contributions from Members in this short, but hopefully valuable, debate. I congratulate the noble Baroness, Lady Jones of Moulsecoomb; she succeeded in doing from her Benches what I was unable to do from the Dispatch Box earlier in answer to a direct request, by identifying Mr Shawcross in his new post. I hope the noble Baroness will accept my further assurances as to the seriousness with which the Government take the points she raised.
The noble Lord, Lord Carlile of Berriew, in an elegant allusion to the values of the town clock at Tredegar, drew our attention to the important work of the Parole Board. We on this side share the noble Lord’s high estimation of the Parole Board. I promise, on behalf of myself and my noble friend and colleague, that we will reflect carefully on the observations made by the noble Lord and by others in the course of debate.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank all noble Lords who have taken part in this short debate. First, turning to the noble Baroness, Lady Jones, as a fellow layman I thought she gave a good summary of rehabilitation. I see rehabilitation as three things: to have something to do with your time, so either a job or education; to have a roof over your head; and to have stable relationships. Stable relationships are very important in all our lives. The problem we may be dealing with regarding this particular category of prisoners is stable relationships which are not conducive to people not reoffending. Nevertheless, I appreciated the noble Baroness’s contribution.
Both the noble Lords, Lord Carlile and Lord Paddick, spoke about the principles of some sort of review. The Times article that the noble Lord, Lord Paddick, referred to reminded me of two or three visits I have made to prison gyms over the years. Absolutely invariably, I have been told by the officers who manage the prison gyms that there is never any trouble in a prison gym. That is because the prisoners know that that would be the first privilege they would lose, which they do not want to lose. So prison gyms, from what I have been told, are trouble-free areas.
The noble and learned Lord, Lord Stewart, gave quite a lengthy answer to my amendment. He described it as potentially counterfactual and impractical. I will have to read properly what he said. However, he slightly mitigated his view on the amendment by saying that he was happy to consider any further submissions I might make. I therefore know there is a potential open door for a later-stage amendment, and with that in mind, I beg leave to withdraw my amendment.